Burke Marshall were shepherding key civil rights legislation through Congress.
Solicitor General Archibald Cox Jr. was arguing the notorious contempt case
involving Mississippi Governor Ross Barnett in the U.S. Supreme Court.
Bizarre circumstances drew me into the mix, unwittingly. I had written my
doctoral thesis at Yale Law School on The Contempt Power, and Columbia
University Press had just published it. Tracing the history and constitutional
problems surrounding the then-modern power of contempt of court and
of Congress, one central issue was the right to a jury trial in contempt cases.
Historically, it was denied on the theory that government bodies required
summary power to carry out its business. A judge could summarily throw
someone in jail for disobeying orders or for misbehavior, sometimes for long
periods of time, without a traditional trial by jury. My book took the position
(now the law) that this historic autocratic practice was an unconstitutional
carryover from kingly times that should not prevail.
The problem was that the southerners in Congress who opposed the proposed
civil rights laws wanted to add the right to trial by jury to the proposed law
because they expected that southern juries would not convict defendants for
civil rights offenses. That very point was before Congress and the Supreme
Court in the Governor Barnett case.
I called RFK's personal secretary, Angie Novello, and asked to meet with the
attorney general. I sheepishly told him I thought I should resign from the
department to prevent further embarrassment.
RFK asked me to explain my book's position. When I did, he commented that
my arguments made sense, that the timing surely was unfortunate, but that
I should not resign. In fact, he asked me to autograph a copy of my book for
him. Then he gave me a signed a copy of his book, The Enemy Within, and said,
smiling, "Go back to work." (Years later, after JFK was killed and I left the Justice
Department, I argued a case in the Supreme Court that changed the jury trial
rule, for the right reasons and in the correct context.)
IN DEFENSE OF RFK
Many of those who worked with him have stories like mine reflecting the kinder,
more thoughtful, and gentler Robert F. Kennedy. After he went to the Senate
and I started my law firm, he sent me a note of congratulations, suggesting we
visit soon and wryly adding, "Every time I pick up a paper, you are defending
me. Many thanks." He was referring to a TIME magazine article (September 16,
1966) where I tried to explain the reluctance of liberals to accept RFK's legitimacy as their leader. "For some liberals, Kennedy is unacceptable because
he has a zero quotient of schmaltz . . . He is not the type to picket or sit crosslegged on the floor, smoking and debating important issues. He is not glib, he
has too much hair, he drinks milk, and he doesn't have a Phi Beta Kappa key."
Some liberals still didn't get RFK.
I had written earlier at length in Washingtonian magazine (May 1966) about the
reluctance of some liberals toward RFK. There I made the case that not only was
RFK the leader of the Democratic liberal trend in the country, but that some of
From the personal collection of Ronald Goldfarb
To my distress, the conservative opponents of the law, now hypocritical civil
libertarian advocates of the right to a jury trial in contempt cases, cited my book
as their authority for their claim. I was mortified to be cited by political enemies
in their fight for the wrong reasons. I felt I had embarrassed the department
I worked for. My authorial pride as a young (31 at the time) writer whose book
received fine reviews by academics, reviewers, and liberals who agreed with
my positions was eclipsed by my being compromised by the timing of its publication. Southern senators read segments of my book into the Congressional
Record. Arthur Krock, the New York Times editorial pundit, sarcastically pointed
out that my book was favorably blurbed by Thurman Arnold, "the most
latitudinarian of liberals." I was bereft.
A letter from Kennedy congratulating Goldfarb for successfully starting
his own law firm.
the very qualities liberals disparaged made him so. Populist tradition makes
us "wary of the powerful," Saul Bellow wrote at the time. But the RFK I knew
disputed the cliché that power corrupts - in his case, his growing political
power led him to better places.
ANSWERING THE CALL
The four-year chapter of my life with RFK at Justice ended on November 22,
1963. Most people remember where they were that day. I was in RFK's office at
one of our regular staff meetings. With us was Robert Morgenthau, then-U.S.
Attorney in New York City, and RFK's Criminal Division assistant, listening to our
reports. The rumor was that RFK would soon be leaving Justice, to be replaced
by Morgenthau, who would run Justice while RFK ran JFK's campaign for a
second term.
Later that morning, it was my turn to talk about the proposed prosecution of a
high mafia character. When I finished my presentation, Kennedy asked Silberling
what he thought of my proposal. Silberling endorsed going forward with the
indictment. Louis Oberdorfer, then head of the Tax Division (later a federal
judge in D.C.) opposed proceeding. My tax indictment, he felt, strained the
application of the revenue laws. I argued if there was a case - all agreed
there was - I wanted the chance to try it. Kennedy pondered the dilemma
and suggested we break for lunch and return at 2 p.m. when he would make his
decision known. He and Morgenthau went to Hickory Hill for lunch. I returned
three floors below to my small office.
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AUGUST/SEPTEMBER 2018
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WASHINGTON LAWYER 29